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§ 92. “With the Advice of the Executive Council.”

These words were inserted to make it plain that the provisional appointment of senators, though vested in the Governor of the State, as head of the State Executive, is not one which he should make according to his own personal judgment and discretion, but that it is, in fact, a political appointment to be made by the State Executive, according to the principle of ministerial responsibility. Such an appointment, made on the advice of a State ministry, having the confidence of the State Parliament, would


  ― 438 ―
probably be one which the Houses of the State Parliament would make if they were in session at the time. It may be pointed out, however, that even if the words at the head of this note had not been inserted in the clause the result would have been precisely the same; no State Governor would venture to make such an important appointment without the advice of his responsible ministers. The words have been inserted in strict conformity with constitutional usage; as the section creates a new power and function the addition of the words “with the advice of the Executive Council” could not possibly involve an infringement of any established prerogative of the Crown. (See § 60, supra.)

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